فصلنامه فقه و اصول
پیاپی 123 (زمستان 1399)

Confidence is a degree of cognition that does not reach the limit of philosophical certainty but at the same time is stronger than conjectures. It is very effective and necessary to study the degree and criterion of the authority of confidence because most types of cognitions do not reach the level and amount of knowledge and certainty. Although religious texts prohibit acting on the basis of anything other than knowledge, the fact that, basically, logical knowledge and certainty are, rarely, obtained leads us to the point that knowledge in religious texts has a broader concept than confidence. Likewise, confidence is recognized as valid by the wise and has been confirmed by Sharia as a binding authority; because despite the divine lawgiver has contemplated acting on the basis of confidence, it has not been forbidden. Considering the above said findings, confidence is not of inherent authority but at the same time, it replaces different types of certitude whether certitude on the subject or certitude without considering the duty-bound's knowledge.

Extracting the Usuli foundations of some Islamic jurists, including Mohaghegh Khansari, who have not left an independent Usuli work, is of special importance. In this research, in addition to examining one of the most widely applied issues of Usul al-Fiqh, namely ascertaining how an absolute term denotes absoluteness, his foundation in this regard has been analyzed and studied. The authors, after scrutinizing the Usuli books and Jami al-Mdarik fi Sharh Mukhtasar al-Nafi book, have come to the conclusion that the denotation of absoluteness by the absolute term is not due to convention; rather, it is realized with the help of the rational proof and through Muqaddimat al-Hikma (premises of wisdom). Such premises consist of the possibility of absoluteness and qualification, lack of evidence on qualification, the speaker being in the position of depiction and the absolute word not being indicative to certain instances; additionally, when relying on absoluteness, it is not necessary that the established amount is absent while addressing; instead, basically, the existence of the established amount while being in the position of addressing is non-sense.

War perfidy is among the concepts of international law of armed conflicts and war crimes in international criminal law. It has been attempted in the Hague Convention as well as the Protocol I Additional to the Geneva Conventions to define this concept and clarify it by giving examples; the definitions are mostly derived from international custom. There is no definition of this concept in the military laws of our country and this definition has been approved only in the form of the Bill of Accession of the Islamic Republic of Iran to the Protocol Additional and article 127 of the Armed Forces Penal Code has imperfectly mentioned some examples of this crime. In the jurisprudential heritage of Islam, despite referring to war perfidy through keywords such as Ghadar (treachery), perfidy has not been defined. Accordingly, the author intends in this paper, by using library sources and analytical-comparative method to define war perfidy as a criminal title from the viewpoint of Islamic sources and rectify the elements of this concept. The outcome of this research is that the jurisprudential definition of war perfidy crime is close to the definition provided in Protocol I Additional to the Geneva Conventions with slight difference and preference.

Dubiety, from the perspective of Islamic criminal jurisprudence and positive law is among essential fancies but it has a relatively ambiguous nature and is applied in case of depenalization. According to the general opinion of jurists, accreditation of dubiety and its impact on punishment is a necessary and obligatory task. However, there is diversity in their views on what is the criterion of repelling dubiety or in assessing the strength and weakness of the dubiety, to the extent that in some cases, it has made the work difficult for judicial experts.Examining the views of Islamic jurists regarding the interaction between the institution of dubiety and components such as "negligent ignorance" and " ignorance caused by fault" and identifying the addressee of the rule of repellence, paves the way for determining the criterion of dubiety so that the general model and the idea of ​​"dubieties" are established on the basis of dynamic jurisprudential and legal teachings. Using a descriptive method based on inductive analysis of particulars, following the inferential method relying on literal and Usuli rules, this research intends to move from particular propositions to universal propositions. As far as the function of the repellence rule is concerned, there is no difference between the situation of dubiety concerning the precept or dubiety concerning the instance and the state of a belief contrary to the reality and dubiety is a broad fancy and imagination that includes the cases of knowledge and certainty and conjecture, even where there exists a principle or authorized conjectural proof denoting religious prohibition. Another outcome of this research is that if dubiety and imagination, in the mind of the perpetrator who is aware of the religious precept, provoke rational personal conjecture, although invalid from the perspective of Sharia, as to the permissibility of a behavior, it can constitute a basis for waiver of Haddi penalty.

In jurisprudential teachings, there is a lot of emphasis on defense readiness against the enemies. One aspect of this readiness is being equipped with all types of war and defense tools, some of which are unconventional weapons such as nuclear and chemical weapons that, due to their uncontrollable effects and very high destructive power, are called weapons of mass destruction. Regardless of permissibility or non-permissibility of their application, the main question is whether it is permissible to produce and stockpile such weapons from the viewpoint of Sharia and can the Islamic state do this in order to prepare for defense against the enemies? Although the appearance of some verses and narrations indicates permissibility and even the need to produce and stockpile this type of weapons in order to maintain defense readiness against the enemies, considering the ultimate goal of this readiness which is to strengthen the background for peace and security, it can be said that being equipped with such weapons contradicts this goal and is not covered by those proofs. In addition, for other reasons including the argument that production, stockpiling and increasing the destructive power of such weapons, themselves, cause fear and terror in human society and disturb mental security and peace and imply serious harm to environment and humans and that owning these weapons is not empowering and the resulting security is unreal and subsequently, does not guarantee the consolidation and maintenance of their holder's power; production and stockpiling of these weapons are futile, costly and troublous tasks and examples of extravagance and squandering the public treasury and are not permissible according to Sharia.

The present article seeks to answer the question whether from the viewpoint of Imami jurists the holy shrines are attached to Mecca Haram in terms of blood money increase and postponement of executing the sentence. In answering this question, as regards blood money increase, some jurists have accepted the increase and some others have refused it. But as far as postponement of executing the sentence is concerned, jurists are divided into three categories; a group have refused the attachment; a second group have become hesitant and a third group have accepted attachment. The findings of this article show that holy shrines affect blood money increase and postponement of executing the sentence; since most jurists have mentioned respecting the holy shrines as the reason for this attachment. It should be noted that with regard postponement of executing the punishment, in addition to the necessity of respecting these sites, the narrated Hadiths, the principle of precaution and the narrations concerning repellence of Hadd reinforce the attachment opinion.

Sexual enjoyment by wife of her husband and vice versa are natural and religious rights of both. However, as far as wife is concerned, under the famous opinion among Islamic jurists, this right is subject to the husband’s positive will. Indeed, husband may not ignore his wife’s request for more than four months after which he is obliged comply with her demand. This descriptive-analytical research shows that the proofs and evidences of the famous opinion are incomplete; since, first, the Idjma (consensus) claimed by the famous Islamic jurists has not been realized and in addition, it lacks authority because its source is known; second, the narrations cited by them are either weak in terms of their chain of narrators or do not prove the claim from the aspect of denotation; third, not only rectifying the effective cause of the proofs is not possible but also the narration of Abou Sabbah Kenani, the essential requirement and absoluteness requirement of contract, criteria relating to the inherent essence of precepts, the No Loss (La Zarar) Rule  and the rational and conventional understandings are against the famous opinion. In conclusion, it appears that the wife’s sexual enjoyment right has no time limit and the need for husband to pay attention to meet his wife’s needs in less than four months is closer to reality.

In treating the contradiction of narrations, narration opposing Sunnis takes precedence over narrations consistent with them; since it has been said that what is contrary to them involves rectitude. As far as the contradiction of narrations is concerned, this criterion has been taken for granted with respect to all Sunnis and in addition it is not specific to Shiites, for Sunnis reciprocally prefer the narration inconsistent with Shiite. However, there is disagreement about the generality of the criterion as well as its applicability to other areas including testimony and judgment and the present paper, in order to study this issue, has discussed it through a descriptive-analytical method and achieved the conclusion that the above mentioned argument is limited to resolving the contradiction of proofs and has no more more capability; consequently, relying on it to prove the condition of belief (being Shiite) for judge and witness is not defendable.